(영문) 대구지방법원 2007. 12. 26. 선고 2005구합3754 판결

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(영문) 대구지방법원 2007. 12. 26. 선고 2005구합3754 판결

연구용역비 지출이 부당행위계산의 부인에 해당하는지 여부[국승]

Title

Whether the payment of research service costs constitutes denial of wrongful calculation

Summary

The disposition of causing depreciation of ordinary development costs and research and development costs as deductible expenses is legitimate, and the act of paying research costs to a person with a special relationship of a corporation is a gratuitous loan of funds to be denied by wrongful calculation.

Related statutes

Article 52 (Dispudiation of Wrongful Calculation)

Article 28 (Non-Inclusion of Paid Interest in Loss)

Text

1. The plaintiff's claims against the defendants are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

Purport of claim

1. On July 15, 2004, the head of ○○ Tax Office revoked each disposition of imposition of corporate tax of KRW 77,950,960 for the business year of 1999, corporate tax of KRW 347,779,130 for the business year of 200, corporate tax of KRW 527,301,050 for the business year of 2001, and corporate tax of KRW 774,365,890 for the business year of 202.

2. On July 12, 2004, the director of the regional tax office of defendant ○○ shall revoke each disposition of notification of changes in the income amount of 5,004,638 won, income amount of 171,640,449 won, income amount of 200 business year belonging to 201, income amount of 380,867,251 won, income amount of 202 business year belonging to 2002, income amount of 486,313,961 won, and income amount of 294,790,194 won belonging to income amount of 203 business year.

(Provided, That among the claims for correction of claims made by the plaintiff on October 22, 2007, it is clear that "308,867,251 won" is a clerical error in "380,867,251 won". It is clear that it is "380,867,251 won" among claims for correction of claims made by the plaintiff on October 22, 2007

Reasons

1. Details of the disposition;

The following facts do not conflict between the parties, or if Gap evidence 1-1 through 6, evidence 1-2-1 through 5, evidence 3-1-2, evidence 4-2, evidence 4-2, 39, and 63, evidence 7, evidence 8-1, 2, 23, Eul evidence 2-2, evidence 3-1 through 5, evidence 4-1 through 7, evidence 5-20, evidence 6, Eul evidence 7, 9-1 through 5, evidence 14-1 through 14-5, and evidence 15-2, it may be acknowledged, and there is no counter-proof otherwise.

A. As a professor of ○○ University Agricultural Bioscience University, an animal engineering and a professor of the Agricultural Bioscience University, in which DHA plays a key role in the growth and function of human two brains is synthetic in the body of milch cattle, the technology that manufactures enzines (name of goods: ○○ additives; hereinafter referred to as “○○ additives”) and the technology that produces milk containing DHA in the milch milk level to smilines (hereinafter referred to as “camines technology”), and the technology that produces milk containing DHA in the miline’s breast feed (hereinafter referred to as “the above two technologies”) can produce milk containing large quantities of food to milines by mixing large quantities of milines by mixing DHA with miline feed.

B. On May 28, 199, in addition to ○○ on May 28, 199, ○○ established the Plaintiff, a stock company with the purpose of manufacturing and selling milch feed for producing milk containing DHA using the key technology, and owned 60% of the Plaintiff’s issued stocks. The remainder 40% of the Plaintiff’s issued stocks was owned by ○○○. The total amount of the Plaintiff’s established capital and increased capital was 50 million won paid by ○○. On October 24, 1999, ○○ held office as the representative director of the Plaintiff and resigned on October 6, 2003.

C. The Plaintiff entered into a 4 research service agreement (hereinafter referred to as "the first research service agreement," "the second research service agreement, etc.") as described in the research service agreement table, with the ○○ University Industrial Technology Research Institute (hereinafter referred to as "the ○○ Industrial Research Institute") and the ○○ University Digital Research Institute (hereinafter referred to as "the ○○○ Digital Research Institute"). The sum of each research service fee is KRW 13.27 billion, and at the time of each research service agreement was the Plaintiff's major shareholder and the ○○ Industrial Research Institute's responsible researcher.

Details of the research service contract;

(hereinafter referred to as "amount unit of each Table: Won

No.

Date of contract

Contracts

Other Party

Research Tasks

End of Contract

Research Costs

The agreed amount

Research Costs

Amount paid

September 1, 1999

○ Industrial Research Institute

N-3 Cases et al. affected by N-3 Local acids on the human body

204.99.1

4,270,000,000

January 3, 2002

○○ Digital Research Institute

Search and research of natural physiological substances and high-quality nutrition substances using biotechnology;

December 31, 2007

5,000,000,000

355,000,000

May 1, 2005

○ Industrial Research Institute

Research on the improvement of human health through the development of geological engineering technology;

December 31, 2005

2,000,000,000

1,944,00,000

o October 10, 2002

○ Industrial Research Institute

Research on the improvement of human health through the development of geological engineering technology;

December 31, 2005

2,000,000,000

Total

13,270,000,000

6,569,000,000

D. The Plaintiff paid KRW 6.21 billion to ○ Industry Research Institute, totaling KRW 350 million to 0.5 billion to ○○ Digital Research Institute, as indicated in the research service agreement content table, as the research service cost under each of the instant research service agreements, and KRW 6.59 billion to ○○ Digital Research Institute (hereinafter referred to as “market research cost”). The payment and accounting records for each of the pertinent business years are as indicated below.

Details of payment and processing of research service costs

Business year

199 business year

200 business year

201 Business year

202 Business year

203 Business year

Expenses for ordinary development

(Expenses in relation to political expenses)

200,000,000

501,600,000

873,013,717

157,400,000

Research and Development Expenses

(Deferred Assets)

382,800,000

1,393,631,200

1,875,300,000

16,668,800

Prepaid Expenses

1,069,117,483

Consolidateds

580,800,000

1,895,231,200

1,875,300,000

2,058,800,000

157,400,000

E. In filing a final return and a revised return on the tax base and amount of each corporate tax for the business year of 1999 through 2002, the Plaintiff’s ordinary development expenses for each business year of 6.5 billion won in total shall be included in the deductible expenses for each business year, and the research and development expenses for each business year of 6.5 billion won in total shall be included in the deductible expenses for each business year, and the amount equivalent to each depreciation amount for each business year shall be included in the deductible expenses for each business year as listed in the following list of the depreciation details of intangible assets. The Plaintiff’s final return and the revised return on each tax base and amount of each corporate tax for each business year of 199 through 202 business year of 199 through 202 shall be listed in the column for each tax return and the revised return on each

Details of intangible assets depreciation;

Classification

199 business year

200 business year

201 Business year

202 Business year

Total

Research and Development Cost Depreciation

For the 1999 minutes

25,520,000

76,560,000

75,560,000

255,200,000

For the 2000

278,726,240

836,178,720

For the 2001

375,060,000

750,120,000

For the 2002

23,33,760

Total

25,520,000

355,286,240

730,346,240

753,680,000

1,864,832,480

F. However, on June 18, 2003 and the 30th day of that month, the Plaintiff terminated each of the instant research services contract with ○○ Industrial Research Institute and ○○ Digital Research Institute. Around that time, ○○ Industrial Research Institute and ○○ Digital Research Institute returned KRW 6,672,278,058 in total to the Plaintiff.

G. In reporting the tax base of each corporate tax for 2003 business year and its tax amount, the Plaintiff included the total of 6,672,278,058 won of the research service costs returned by ○○ Industrial Research Institute and ○○ Digital Research Institute in its gross income. The Plaintiff’s corporate tax base for the business year of 2003 business year and the details of the return of the tax amount are the same as the report column of the tax calculation statement for the business year of 2003

H. On December 10, 2003, when the plaintiff filed a final return on the tax base and amount of each corporate tax for the business year from 1999 to 2002 and filed a revised return thereon, the head of the tax office of ○○○○ (hereinafter referred to as the "head of the tax office") denied the inclusion of the depreciation costs and depreciation costs for each business year as stated in the following income adjustment table for the reason that the plaintiff did not include the inclusion of the depreciation costs and the depreciation costs for the business start-up in deductible expenses, the inclusion of the depreciation costs and depreciation costs in deductible expenses for each business year as stated in the following income adjustment table for the following reasons: the plaintiff calculated the tax base and amount of each corporate tax for each business year from 1999 to 202 business year from 199 to 2002, the amount of each corporate tax for the business year from 199 to 200, 199, 240, 200, 301, 304, 2009.

Table of Income Amount Adjustment

Business year

199

200

201

202

Total

Research and Development Cost Reduction

Depreciation and inclusion in deductible expenses;

-91,040,000

-140,320,000

-419,046,240

-157,208,200

-807,614,440

Expenses for ordinary development

Non-Inclusion

200,000,000

501,600,000

1,100,269,850

1,801,869,850

Depreciation of business start-up costs

Inclusion in Loss

-64,000

Amount of income:

108,896,000

361,280,000

681,223,610

-157,208,200

94,191,410

I. However, the director of the regional tax office of ○○○ (hereinafter referred to as the "director of the regional tax office of ○○○○ (hereinafter referred to as the "defendant") conducted a tax investigation on the issues of research funds between the Plaintiff and the ○○○○○○○ (hereinafter referred to as the "the head of the regional tax office") upon reporting the tax evasion of ○○○, etc. from October 2003 to July 2004, and as a result, the Plaintiff concluded each research service contract of this case formally with ○○ Industrial Research Institute and the ○○ Digital Research Institute, and then paid 6.569 billion won to the Plaintiff as the major shareholder and the representative director in a special relationship with the Plaintiff, regardless of their duties, in a round-up manner via ○○ Industrial Research Institute and the ○○ Digital Research Institute. At that time

(j) Meanwhile, on the basis of the results of the tax investigation under the preceding paragraph on July 12, 2004, the head of the Defendant denied the Plaintiff’s act of paying 6.569 billion won for the key research expenses to the credit ○○○ in a special relationship, on the ground that the Plaintiff’s act of paying 6.59 billion won for the key research expenses on the part of the Plaintiff constitutes an unfair act that unfairly reduces the burden of taxation. In addition, the head of the Defendant issued a disposition of income that recognized the interest on the key research expenses for each business year indicated below as follows and reverts the amount equivalent to the Plaintiff’s bonus to the Plaintiff’s representative director’s bonus for each business year. In addition, the head of the Defendant issued the notice of change in the amount of income (hereinafter “the notice of change in the amount of income”).

Recognized Interest List

Business year

199 business year

200 business year

201 Business year

202 Business year

203 Business year

Recognition Interest

5,004,638

171,640,449

380,867,251

486,313,961

294,790,194

(k) On July 15, 2004, in calculating the tax base and the amount of each corporate tax for the business year from 1999 to 2002 of the Plaintiff’s 199 to 2002 business year, the Defendant Secretary denied the Plaintiff’s inclusion of the total amount of the research expenses related to the issue research and development expenses, depreciation of research and development expenses, and interest paid in deductible expenses on the ground that the 6.59 billion won for the business year from the 1999 to 2002 business year is a provisional payment without charge pursuant to the taxation data by the head of the Defendant. In addition, the Plaintiff’s calculation of the tax base and each amount of each corporate tax for the business year from 1999 to 202 business year from the 1999 to the 2002 business year from the date of the Plaintiff’s calculation of the tax base and the amount of each tax, and the Plaintiff’s return and tax amount for each business year from the 1999 to the 2000 business year from the corporate tax for the 20047,797.7.205

E. Meanwhile, in calculating the Plaintiff’s tax base of corporate tax for the business year of 2003 and its tax amount, the Defendant Western issued a corrective disposition to reduce the Plaintiff’s corporate tax for the business year of 2003 to KRW 3,960,65,196 from KRW 6,672,278,058 to KRW 3,960,90,317 of the issues research funds returned by the ○○ Industrial Research Institute and the ○ Digital Research Institute, and to KRW 3,524,723,879 and KRW 714,65,196 of the Plaintiff’s tax base of corporate tax for the business year of 203 as stated in the second correction column of the tax calculation statement for the business year of 2003.

2. Whether this case’s change of income amount, notification, disposition, and taxation are legitimate

The Defendants asserted that the notice of change in income amount of this case and the disposition of this case are lawful as a disposition in accordance with relevant statutes.

On the grounds delineated below, the plaintiff asserts that the notice of change in the income amount of this case and the disposition of this case should be revoked in an unlawful manner.

(a) Whole amount of the ordinary development costs of the issues of research and development and inclusion of depreciation costs in deductible expenses;

(b) Evidence No. 4-3 through 43, 62, 63, evidence No. 7, evidence No. 8-1, 2, 3, evidence No. 9, evidence No. 4-1 through 7, evidence No. 5-1 through 20, evidence No. 6, 7, 9, evidence No. 10-1, 57, 58, 59, evidence No. 6-1, 8, 12, and 13, evidence No. 5-1, evidence No. 5-1, evidence No. 4, evidence No. 5-1, evidence No. 5-1, evidence No. 4, evidence No. 5-1, evidence No. 5-2, evidence No. 5, evidence No. 4-1, evidence No. 5, evidence No. 51, evidence No. 4-2, evidence No. 57, evidence No. 5-1, and evidence No. 6-1, evidence No. 4, evidence No. 5-1, and evidence No. 5-1, evidence No. 6

(A) From September 1, 1999 to October 10, 2002, the Plaintiff entered into each of the instant research services agreements with ○○ Industrial Research Institute and ○○ Digital Research Institute in an amount equivalent to KRW 13.27 billion in total of the research services costs for key technology. At the time of entering into each of the instant research services agreements with ○○○ University’s Agricultural Bioscience Technology University and ○○ Industrial Research Institute, the Plaintiff owned 60% of the Plaintiff’s shares issued and was actually managing the Plaintiff Company as the Plaintiff’s major shareholder or representative director. The ○○ Digital Research Institute was a research institute affiliated with the ○○ University and the ○○ Digital Research Institute, which is a major research institute affiliated with the ○○ University and the ○○ Digital Research Institute, with a view to research and development of digital technology, such as digital TV and software development, and it has no direct relation to the key technology belonging to the field of agriculture bioscience.

(B) For the period from 1993 to 1998, women transferred 21 domestic and foreign patents related to the key technology to ○○○○, a corporation, etc. The Plaintiff transferred 21 domestic and foreign patents related to the key technology from ○○, a corporation, etc. immediately after its establishment on May 28, 1999, and currently owns 40 million won.

(C) The ○○ Industrial Research Institute and the ○○ Digital Research Institute provided the Plaintiff with a formal research report on May 7, 2002, there is no record of providing the research results according to each research service contract of this case except for the case where one case was provided.

(D) The Plaintiff paid ○○○○ Industrial Research Institute and ○○ Digital Research Institute by the time limit of global income on the financial income while using 6.5 billion won for private purposes, such as auction real estate acquisition funds, stock investment funds, etc., in a personal manner, while managing 6.569 billion won in a personal manner (see evidence 12).

(E) The Plaintiff’s net income based on the Plaintiff’s statement of accounts is KRW 932,782,846, KRW 1,950,483,516, KRW 1,413,220, KRW 979, KRW 1,868,437,625, KRW 716, KRW 716, KRW 2002, KRW 1,868, KRW 437,625, KRW 716, KRW 716, KRW 2003, KRW 2104, KRW 2104,068, KRW 177, KRW 2005, KRW 3,525,566, and KRW 1,787,000, KRW 1,77700,000, KRW 1,747,000 for each of the above business years’ annual average net income based on the Plaintiff’s statement of accounts.

(f) The Plaintiff’s fees or advisory fees for the technology at issue or for the settlement of accounts for each business year of 2004 and 2005 are not calculated as losses.

(2) The following facts can be seen from each of the preceding paragraphs, i.e., 00 6 ○○○ Industrial Research Institute: ① ○○○○○ University’s Animal Engineering Institute’s major shareholder and ○○ Industrial Research Institute’s manager or representative director, and ○○○○○ Industrial Research Institute’s completion of research and development of key technology before the conclusion of each research service contract between the Plaintiff and ○○ Industrial Research Institute’s major shareholder and ○○○○○ Industrial Research Institute’s management of 650 million won for private purposes; ② ○○○○ Research Institute’s personal research and development of 69 billion won for ○○○ Industrial Research Institute’s tax evasion report; ○○○ Industrial Research Institute and ○○ Digital Research Institute were returned to the Plaintiff. 6 ○○○○ Industrial Research Institute and ○○ Digital Research Institute’s 6 000,000 won for referring to research and development of digital television and software’s research and development services contract.

(3) As seen earlier, the Plaintiff: (a) manufactured miline feed for milk production in DHA by receiving advice from the Plaintiff, and supplied ○○○ University with exclusive feed; and (b) paid KRW 6.569 billion to the ○○ Industry Research Institute and the ○○ Digital Research Institute in return for the use of the key technology and the advice of the ○○○○○○○○’s establishment of a life science research institute; and (c) paid KRW 6.569 billion to the ○○ Industry Research Institute and the ○○ Digital Research Institute in return for the advice of the ○○○○○○○○○○’s use of the key technology and the ○○ Digital Research Institute in calculating the tax base and the amount of the corporate tax for each business year of the Plaintiff under the principle of substantial taxation.”

그러므로 살피건대 원고의 위 주장에 부합하는 듯한 갑 제4호증의 51, 52의 각 기재 및 갑 제4호증의 2, 48, 53, 54, 55, 57, 58, 59, 갑 제6호증의 1, 2, 을 제8, 12, 13호증의 각 일부 기재는, 앞서 인정한 사실에서 볼 수 있는 다음과 같은 사정, ① 원고는 쟁점연구비 65억 6,900만원 중 연구개발비 37억 6,840만원을 무형자산(쟁점기술)의 취득비용으로 회계처리하여 그에 관한 일정한 비율의 감가상각액을 각 사업연도의 손금에 산입하였는데, 만일 쟁점기술의 사용료 또는 쟁점기술에 관한 자문료라면 연구개발비를 무형자산의 취득비용으로 회계처리할 이유가 전혀 없는 점, ② 이 사건 각 연구용역계약의 계약기간이 서로 중복되므로, 쟁점연구비가 쟁점기술의 사용료 또는 쟁점기술에 관한 자문료라면 계약기간이 서로 중복되는 기간에 대하여는 쟁점기술의 사용료 또는 쟁점기술에 관한 자문료를 중복 지급하는 셈이 되는데, 이는 상식적으로 선뜻 납득하기 어려운 점, ③ 원고의 1999사업연도 내지 2005사업연도 결산서상 연평균 당기순이익이 약 17억 8,700만원인 반면, 이 사건 각 연구용역계약에 의하면 원고가 1999사업연도부터 2007사업연도 사이에 ○○산업연구소와 ○○디지털연구소에 지급하여야 할 연평균 연구용역비가 14억 7,400만원으로서 결산서상 연평균 당기순이익의 약 82.5%(14억 7,400만원÷17억 8,700만원X100)에 달하는 점, ④ 원고의 2004사업연도 및 2005사업연도의 각 결산서에도 쟁점기술의 사용료 또는 그에 관한 자문료가 손금으로 계상되어 있지 않는 점(을 제16호증의 17, 18 참조), ⑤ ○○산업연구소와 ○○디지털연구소가 원고로부터 쟁점기술의 사용료 또는 쟁점기술에 관한 자문료조로 쟁점연구비 65억 6,900만원을 정상적으로 수령하였다면, 국립대학교 산하의 연구기관인 ○○산업연구소와 ○○디지털연구소가 원고에게 거액의 쟁점연구비를 반환하여야 할 이유도 없고 공공기관의 회계처리상 이를 쉽게 반환할 수 없었을 것임에도 불구하고, ○○산업연구소와 ○○디지털연구소가 원고에게 쟁점연구비 65억 6,900만원을 반환한 점, ⑥ 원고가 주식회사 ○○○○를 거쳐 여○○으로부터 쟁점기술과 관련한 국내외 특허 21건을 4,000만원에 양수하여 현재 이를 소유하고 있으므로, 원고로서는 여○○에게 쟁점기술에 관한 사용료를 지급할 이유가 없을 것으로 보이는 바, 이 점과 관련하여 원고는 핵심기술은 모방 등을 방지하기 위해서 특허등록을 하지 않았다고 주장하고 있으나 원고 주장의 핵심기술의 실체 또는 내용 및 그 실질적 가치가 객관적으로 확인되지 않는 점, ⑦ 원고는 쟁점연구비를 쟁점기술의 사용료 내지 그에 관한 자문료로 회계처리하지 않고, 경상개발비와 연구개발비로 회계처리한 점, ⑧ 여○○은 이○○과 함께 원고 회사를 설립하면서 그 설립자본금 및 증자자본금 합계 5억원을 이○○이 전액 납입하였음에도 불구하고 원고 발행 주식의 60%를 배정받아 이를 소유하고 있으므로, 원고 법인을 설립함에 있어 여○○은 쟁점기술을 투자하고, 이○○은 원고 법인의 설립자본금 및 증자자본금을 투자하였다고 볼 여지가 있을 뿐만 아니라 여○○은 1999사업연도부터 2003사업연도까지 사이에 국립대학교인 ○○대학교의 교수로 근무하고 있는 상태에서 원고의 대표이사로 겸직·근무하면서 원고로부터 합계 327,313,765원 연평균 약 65,000,000원(≒ 327,313,765원÷5)상당의 급료를 지급받았는데, 그 급료 속에는 쟁점기술에 관한 자문료가 포함되어 있는 것으로 볼 수 있고, 그렇다면 원고는 여○○에게 쟁점기술에 관한 사용료와 자문료를 별도로 지급할 이유가 없게 되는 점 등을 종합하여 볼 때 이를 선뜻 믿기 어렵고, 갑 제4호증의 44, 45, 46, 47, 49, 50, 56, 60, 61, 갑 제5호증의 1, 2, 갑 제10, 11호증의 각 1, 2, 갑 제12호증, 갑 제13호증의 1, 2, 3, 갑 제14호증의 1 내지 5의 각 기재와 증인 최○○의 증언만으로는 원고의 위 주장 사실을 인정하기에 부족하며, 그 밖에 달리 이를 인정할 만한 증거가 없다.

Therefore, in calculating the Plaintiff’s tax base and its amount of corporate tax for each business year under the substance over form principle, the Plaintiff’s assertion that the amount of KRW 6.569 billion should be included in the deductible expenses as expenses incurred in relation to business affairs cannot be accepted.

(4) If so, when the Plaintiff returns the tax base of each corporate tax for the business year from 1999 to 2002 and their respective tax amounts, the inclusion of the total amount of the ordinary development costs and the depreciation amount of the research and development costs in the deductible expenses would result in an unfair inclusion of the processing costs paid regardless of the business in the deductible expenses. Therefore, it is legitimate for Defendant Seo-gu to deny the inclusion of the total amount of the ordinary development costs and the depreciation amount of the research and development costs in the deductible expenses in the calculation of deductible expenses in the instant taxation disposition

(b) A person who has committed unfair acts with respect to the recognized interest;

(i)The plaintiff's assertion

As seen earlier, the Plaintiff denied this on the ground that “the Plaintiff paid KRW 6.569 billion to ○○ Industrial Research Institute and ○○ Digital Research Institute in consideration of the use of the key technology owned by ○○○○ as seen earlier and the advice thereon. As such, the key research cost is KRW 6.569 billion. Nevertheless, the Defendants’ key research cost is KRW 6.569 billion, which is a non-business-related temporary payment, and the Defendants unduly lent the key research cost to ○○○○○○ in a special relationship with 6.5 billion. As such, the Plaintiff’s act of paying KRW 6.5669 billion in the key research cost and its respective tax amount for each business year constitutes an act of unreasonably reducing tax burden. In calculating the corporate tax base and its respective tax amount for each business year of the Plaintiff, it is unlawful for the Plaintiff to include the amount equivalent to KRW 6.569 billion in the gross income and the amount equivalent to the representative director’s loss and to deny the change in the amount of income as well as to the amount equivalent to the Plaintiff’s income amount corresponding to each bonus.

(2) Relevant statutes

Attached Form is as shown in the attached Form.

(3) Determination

According to the facts acknowledged earlier, it is reasonable to view that the Plaintiff concluded each of the instant research services agreements with the ○○ Industrial Research Institute and the ○○ Digital Research Institute in a formal manner bypassing via the ○○ Industrial Research Institute and the ○○ Digital Research Institute, as the Plaintiff’s major shareholder and representative director, the Plaintiff paid KRW 6.569 billion to the female ○○ in a special relationship with the Plaintiff, regardless of the Plaintiff’s duties, by pretending to be the research services cost. Therefore, the issue research cost of KRW 6.569 billion in a non-business-related amount, which is a non-business-related provisional payment, results in an unreasonable gratuitous lending of the Plaintiff

Therefore, it is legitimate to deny that the Plaintiff’s act of free lending of 6.569 billion won for the issue of the Plaintiff’s credit ○○ constitutes an unfair act that unreasonably reduces tax burden, and thus, in calculating the Plaintiff’s corporate tax base and its respective tax amount for each business year, the Defendants denied the Plaintiff’s act of free lending of 6.569 billion won for the issues of the Plaintiff’s credit ○○○○○○○○○○ in the calculation of the Plaintiff’s corporate tax base and its respective tax amount, as an unfair act of lending, and to include the recognized interest amount as to the 6.569 billion won for the issue research expenses and the amount equivalent thereto in the gross income, to deny the inclusion of the amount equivalent to the paid interest and the amount equivalent thereto in the deductible expenses, as well as to notify the Plaintiff of changes in the amount of income corresponding to the amount of each tax amount

(1) The plaintiff's assertion

The Plaintiff asserted that the Defendant’s book issued the instant tax disposition by attaching the tax base of corporate tax for each business year and the calculation statement of each tax amount to the notice of the instant tax disposition, but the Defendant’s book did not attach the tax base of corporate tax for each business year and the calculation statement of each tax amount to the notice of the instant tax disposition. As such, the Defendant’s book argues that the instant tax disposition should be revoked due to its defects in the notification procedure.

(2) Relevant statutes

Attached Form is as shown in the attached Form.

(3) Determination

In light of the overall purport of the arguments in the statement No. 1-4 of the evidence No. 1-2 of this case, it can be acknowledged that the defendant's clerk imposed and notified the corporate tax of this case for each business year of this case by the legal notice stating the total tax amount to be paid and the tax base, tax rate, deducted tax amount, etc. in relation to the taxation of this case. Thus, the calculation basis or the amount of tax pursuant to Article 9 (1) of the National Tax Collection Act, Article 70 of the Corporate Tax Act, and Article 109 of the Enforcement Decree of this Act are sufficient to state the above, and it cannot be deemed that the taxation of this case was unlawful on the ground that the defendant's clerk did not state the actual basis, route, circumstance, basis, etc. for calculating the amount of tax, such as gross income and deductible expenses (see Supreme Court Decision 2001Du1014, Jan. 27, 2004). The defendant's argument that the taxation of this case should be revoked as it is unlawful (see).

(d) Whether the disposition of income exists

(1) The plaintiff's assertion

The plaintiff argues that "the head of the defendant headquarters did not take a disposition of income that belongs to the plaintiff's representative director's bonus in relation to the interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-based interest-

(2) Relevant statutes

Attached Form is as shown in the attached Form.

(3) Determination

According to the above facts and the records in Eul evidence Nos. 14-1 through 5, the defendant head of the office of the defendant shall dispose of the income with the content that the amount of the interest on the issue research expenses for each business year and the amount equivalent to the plaintiff's bonus shall be reverted to the plaintiff's representative director's bonus, and it can be recognized that the plaintiff made the notification of the change in the amount of income to the plaintiff according to the disposition of the income. Thus, the plaintiff's assertion that the notification of the change in the amount of income of this case by the head of the defendant head of the office of the defendant is unlawful because the disposition of the change in the amount

E. Sub-decision

Therefore, the instant taxation disposition and the instant notice of change in income amount are legitimate dispositions in accordance with the relevant laws and regulations.

3. Conclusion

Therefore, the Plaintiff’s claim against the Defendants seeking revocation on the grounds that the instant taxation disposition and the instant notice of change in income amount were unlawful is dismissed as all of the grounds are without merit. It is so decided as per Disposition.

Statement of Tax Amount for each business year;

1. Business year 199 business year (hereinafter referred to as "business year unit"); and

Classification

Reporting

First Correction

Reporting (Revised Date)

31, 200

December 10, 2003

7.15

Current net income (A) on the settlement of accounts;

932,782,846

Gross income (B)

170,461,215

370,461,215

404,398,106

Inclusion (C)

91,104,000

64,000

Amount of deducted income (D =A +B-C)

1,103,244,061

1,212,140,061

1,337,116,952

Tax Base (E=D)

1,103,244,061

1,121,140,061

1,337,116,952

Tariff Rate (F)

28%

calculated tax amount [G = (E-100,000,000), X F

+16,000,000

300,908,336

33,399,217

366,392,746

Deduction and Exemption Tax Amount (H)

150,454,169

66,279,843

60,630,165

Amount of deducted tax (I=G-H)

150,454,167

267,119,374

305,762,581

Penalty Tax (J)

81,638,437

120,946,193

Total determined tax amount (K=I +J)

150,454,167

348,757,811

426,708,774

Within the due date (L)

150,454,167

150,627,569

Original determined tax amount (M)

198,130,242

Amount of tax to be deducted (N=K-L-M)

198,130,242

7,950,963

(Methods of Proof)

§ 16-2 of this title

§ 16-3 of this title

§ 14-1 of this title

2. Business year 200; and

Classification

Reporting

Revised Declaration

First Correction

Reporting (Revised Date)

501.31

December 10, 2001

December 10, 2003

7.15

Current net income (A) on the settlement of accounts;

1,950,483,516

Gross income (B)

412,210,304

913,810,304

1,186,460,394

Inclusion (C)

38,861,350

479,181,350

60,135,110

Amount of deducted income (D =A +B-C)

2,023,832,470

2,385,112,470

3,076,808,800

Tax Base (E=D)

2,023,832,470

2,385,112,470

3,076,808,800

Tariff Rate (F)

28%

Calculated tax amount [G = (E-100,000,000)]

X F+16,000,000

54,673,092

54,673,091

655,831,491

849,506,464

Deduction and Exemption Tax Amount (H)

277,336,546

270,082,792

108,502,66

12,695,603

Amount of deducted tax (I=G-H)

277,336,546

284,590,299

547,328,825

736,810,861

Penalty Tax (J)

921,226

140,123,132

298,420,228

Total determined tax amount (K=I +J)

277,336,546

285,511,525

687,451,957

1,035,231,089

Within the due date (L)

277,336,546

285,511,525

Original determined tax amount (M)

401,940,432

Amount of tax to be deducted (N=K-L-M)

401,940,432

347,779,132

(Methods of Proof)

§ 16-4.

§ 16-6.

Corporation 16 No. 7

§ 14-2.

3. Business year 201.

Classification

Reporting

Revised Declaration

First Correction

Reporting (Revised Date)

31, 202

December 10, 2001

December 10, 2003

7.15

Current net income (A) on the settlement of accounts;

1,413,220,979

Gross income (B)

693,964,603

1,794,234,453

2,255,156,379

Inclusion (C)

390,196,205

668,922,445

809,242,445

15,136,205

Amount of deducted income (D =A +B-C)

1,716,989,377

2,538,532,987

2,398,212,987

3,653,241,153

Tax Base (E=D)

1,716,989,377

2,538,532,987

2,398,212,987

3,653,241,153

Tariff Rate (F)

28%

Calculated tax amount [G = (E-100,000,000)]

X F+16,000,000

468,757,026

698,789,236

659,499,636

1,010,907,522

Deduction and Exemption Tax Amount (H)

231,420,302

346,411,898

197,849,891

208,449,757

Amount of deducted tax (I=G-H)

237,336,724

352,377,338

461,649,745

802,457,765

Penalty Tax (J)

43,609,772

7,374,945

263,867,979

Total determined tax amount (K=I +J)

237,336,724

395,987,110

539,024,690

1,066,325,744

Within the due date (L)

237,336,724

395,987,110

Original determined tax amount (M)

143,037,580

Amount of tax to be deducted (N=K-L-M)

143,037,580

527,301,054

(Methods of Proof)

§ 16-8 of this title

Corporation 16 No. 10

§ 16. 11.

§ 14-3

4. Business year 202.

Classification

Reporting

First Correction

Reporting (Revised Date)

203.31

December 10, 2003

7.15

Current net income (A) on the settlement of accounts;

1,868,437,625

Gross income (B)

381,548,905

2,494,556,583

Inclusion (C)

7,470,142

164,678,342

7,470,142

Amount of deducted income (D =A +B-C)

2,242,516,388

2,085,308,188

4,355,524,066

Tax Base (E=D)

2,242,516,388

2,085,308,188

4,355,524,066

Tariff Rate (F)

27%

calculated tax amount [G = (E-100,000,000), X F

+16,000,000

593,479,424

551,033,210

1,163,91,497

Deduction and Exemption Tax Amount (H)

280,918,805

154,256,376

170,184,604

Amount of deducted tax (I=G-H)

312,560,619

396,776,834

93,806,893

Penalty Tax (J)

6,417,275

183,753,113

Total determined tax amount (K=I +J)

312,560,619

403,194,109

1,177,560,006

Within the due date (L)

312,560,619

Original determined tax amount (M)

90,633,490

Amount of tax to be deducted (N=K-L-M)

90,633,490

74,365,897

(Methods of Proof)

Corporation 16 No. 12

Corporation 16 No. 14

§ 14-4 of this title

5. Business year 203.

Classification

Reporting

First Correction

Reporting (Revised Date)

31, 204

6.1

7.15

Current net income (A) on the settlement of accounts;

716,793,516

Gross income (B)

6,655,517,812

3,511,024,969

Inclusion (C)

703,094,606

Amount of deducted income (D =A +B-C)

6,669,216,722

3,524,723,879

Tax Base (E=D)

6,669,216,722

3,524,723,879

Tariff Rate (F)

27%

calculated tax amount [G = (E-100,000,000), X F

+16,000,000

1,788,688,514

939,675,447

Deduction and Exemption Tax Amount (H)

519,487,377

240,902,176

Amount of deducted tax (I=G-H)

1,269,201,137

698,773,271

Penalty Tax (J)

2,400

169,630

15,891,925

Total determined tax amount (K=I +J)

1,269,203,537

1,269,370,767

714,665,196

Within the due date (L)

1,269,203,537

1,269,370,767

Original determined tax amount (M)

Amount of tax to be deducted (N=K-L-M)

167,230

-54,705,571

(Methods of Proof)

§ 16. 15

§ 16. 16.

§ 14-5

Related Acts and subordinate statutes

1. Principle of substantial taxation:

Basic Act

Article 14 (Real Taxation)

(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such title belongs exists, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

(2) The provisions concerning the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

Corporate Tax Act (Amended by Act No. 8141, Dec. 30, 2006; hereinafter the same shall apply)

Article 4 (Real Taxation)

(1) Where the corporation to which all or part of revenue from assets or business legally accrues and the corporation to which it actually accrues are different, this Act shall apply to the corporation to which the revenue actually accrues.

(2) The provisions concerning the calculation of the amount of taxable income subject to corporate tax shall apply according to the substance, notwithstanding the name or form of such income or profits.

2. Denial of unfair calculation; and

Corporate Tax Act

Article 52 (Dispudiation of Wrongful Acts)

(1) Where the superintendent of the competent district tax office or the Commissioner of the competent Regional Tax Office deems that the tax burden on the income of a domestic corporation has been unjustly reduced through transactions with a person with a special relationship as prescribed by the Presidential Decree (hereinafter referred to as a "specially related person"), he may calculate the income amount for each business year of the relevant corporation without regard to the act or calculation of the income amount of the relevant corporation (hereinafter referred to

Enforcement Decree of Corporate Tax Act

Article 87 (Scope of Person with Special Relationship)

(1) "Person with a special relationship prescribed by Presidential Decree" in Article 52 (1) of the Act means a person with a relationship falling under any of the following subparagraphs with a corporation (hereinafter referred to as a "person with a special relationship"):

1. Persons recognized as exercising real influence over the operations of the concerned corporation, such as exercising the right to appoint officers or determining the course of business (including persons to be treated as directors under Article 401-2 (1) of the Commercial Act) and their relatives;

2. Stockholders, etc. (excluding minority shareholders; hereafter the same shall apply in this Sub-section) and their relatives;

8. Non-profit corporations in which the founder is a person falling under subparagraphs 1 through 3 and the relevant corporation who either forms the majority of the directors or contributes 50/100 or more of the contributions (limited to contributions for its establishment).

Article 88 (Calculation Type of Wrongful Acts)

(1) The term “case where it is deemed that the tax burden has been unjustly reduced” in Article 52 (1) of the Act means the case falling under any of the following subparagraphs:

6. Where money and other assets or services are provided with no compensation or at an interest rate, tariff, or rental rate: Provided, That this shall not apply where company housing is provided to officers who are not stockholders, etc. or investors (including officers who are minority shareholders under Article 87 (2)) and employees;

(2) The provisions of paragraph (1) shall apply to transactions between the relevant corporation and the specially related person (including transactions conducted through persons, other than the specially related persons) as of the time of such acts: Provided, That in applying the provisions of paragraph (1) 8 (a), the determination of a corporation which is the specially related person shall be based on the period from the first day of business year immediately preceding the business year in which the merger is registered (referring to the first commencing

3. Non-deductible expenses paid;

Corporate Tax Act

Article 28 (Non-Inclusion of Interest Paid in Calculation of Losses)

(1) The interest on loans falling under any of the following subparagraphs shall not be included in deductible expenses in calculating the income amount of a domestic corporation for each business year:

4. Of interest on loans paid during each business year by a domestic corporation which acquires or holds assets falling under one of the following items, the amount calculated under the conditions as prescribed by the Presidential Decree (limited to interest on loans equivalent to the value of the relevant assets):

(b) Provisional payments, etc. prescribed by the Presidential Decree to a person with a special relationship under Article 52 (1) without connection with the business of the relevant corporation; and

Enforcement Decree of Corporate Tax Act

Article 53 (Non-Inclusion of Interest Paid on Non-Business Assets, etc. in Calculation of Losses)

(1) The term “those as prescribed by the Presidential Decree” in Article 28 (1) 4 (b) of the Act means the lending amount (including the lending amount of funds which cannot be regarded as the principal profit-making business in the case of financial institutions, etc. falling under any subparagraph of Article 61 (2)) of funds which are not related to the business of the relevant corporation, regardless of their names: Provided, That

Enforcement Rule of Corporate Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 307 of March 26, 2003)

Article 28 (Scope of Amount Excluded from Provisional Payment, etc.)

(1) "Amount prescribed by Ordinance of the Ministry of Finance and Economy" in the proviso to Article 53 (1) of the Decree means the amount falling under any of the following subparagraphs:

1. An amount for which no recognized interest rate shall be calculated under Article 44;

2. Temporary advance payment of a monthly wage to an employee within the limit of the monthly wage.

3. The amount of loans made to employees for the congratulatory investigation expenses;

4. The amount of school expense loans to employees (including the children of employees);

4. Notice of tax base and amount of tax.

Corporate Tax Act

Article 70 (Notification of Tax Base and Tax Amount) The superintendent of the competent district tax office or the director of the competent regional tax office shall, where he determines or correctss the tax base and tax amount of corporate tax on income for each business year of a domestic corporation pursuant to Article 53 or 66, notify the domestic corporation concerned

Enforcement Decree of Corporate Tax Act

Article 103 (Settlement and Correction)

(1) The head of the regional tax office having jurisdiction over the place of tax payment shall determine or correct the tax base and tax amount under Article 66 of the Act: Provided, That where the Commissioner of the National Tax Service deems it particularly important, he/she may determine or correct it, and the head of the regional tax office having jurisdiction over the place of tax payment shall immediately

Article 109 (Notification of Tax Base and Tax Amount)

(1) Where the superintendent of the competent tax office notifies the tax base and the amount of tax pursuant to Article 70 of the Act, he shall notify the tax payment notice along with the tax base and the detailed statement of calculation of the amount of tax, and where there is no amount or no amount of tax payable for each business year, he shall notify the determined amount. In this case, it shall be additionally stated that the head of the competent regional tax office has investigated and determined the

(2) The superintendent of the competent tax office shall, upon determining the tax base of a corporation under Article 104 (2), enter the revenue amount as the standard in the calculation statement under paragraph (1), and notify it.

5. Disposal of income;

Corporate Tax Act

In filing a report on the tax base of corporate tax on income for each business year pursuant to the provisions of Article 60 or in determining or revising the tax base of corporate tax pursuant to the provisions of Article 66 or 69, the amount included in gross income shall be disposed of as bonus, dividend, other outflow, internal reserve, etc. according to the person to whom the income belongs, as prescribed by Presidential Decree.

Enforcement Decree of Corporate Tax Act

Article 106 (Disposition of Income)

(1) The amount included in the calculation of earnings under the provisions of Article 67 of the Act shall be disposed of under the provisions of the following subparagraphs. The same shall apply to non-profit domestic corporations

1. Where the amount included in the calculation of earnings has clearly leaked out of the company, the dividends, bonuses from the disposition of profits, other income, and other outflow from the company under each of the following items according to the person to whom they accrue: Provided, That where the accrual is unclear, it shall be deemed as accrual to the representative (where the sum of stocks, etc. held by an officer who is not a minority shareholder under the provisions of Article 87 (2) and persons with a special relationship under the provisions of paragraph (4) of the same Article is 30% or more of the total number of stocks issued or total investment amount of the relevant corporation and the officer actually controls the operation of the corporation, he shall be deemed the representative, and where a corporation reports that there is another person who represents the relevant corporation among the officers who are stockholders, etc., and where the relevant corporation reports that there are two or more representatives, the reporter shall be the representative, and where there are 2 or more representatives, the de facto representative;

(b) If the person to whom it belongs is an officer or employee, the bonus to the person to whom it reverts;

심급 사건

대구지방법원 2007.12.26.선고 2005구합3754

-대구고등법원 2009.01.23.선고 2008누168

-대법원 2009.05.28.선고 2009두3255

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